Tender reference S2HN/5PD/12/0002

Andrew Roberts made this Freedom of Information request to East Midlands Strategic Health Authority

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear East Midlands Strategic Health Authority,

On 27 July 2012 and on 12 September 2012 advertisements were published on the Supply 2 Health website relating to the procurement of a range of community services by NHS Milton Keynes and Northamptonshire PCT Cluster supported by NHS Midlands and East (SHA) .

Please supply copies of the tender documents, including but not limited to the EOI/PQQ or similar specification documents.

On 18 October 2012 a notice was published on the Supply 2 Health website relating to the procurement of a range of community services by NHS Milton Keynes and Northamptonshire PCT Cluster supported by NHS Midlands and East (SHA).

Please supply copies of any guidance or other briefings which indicate who, how and why the decision was made to withdraw the tender.

please supply copies of documents or other briefings which indicate why the services will be published again under "open tender following the correct procedures under the Public Contract Regulations 2006"

Thank you.

Yours faithfully,

Andrew Roberts

FOI (EAST MIDLANDS STRATEGIC HEALTH AUTHORITY),

Dear Mr Roberts
 
Freedom of Information
 
I acknowledge receipt of your request for information to NHS East Midlands
which I received on 26 October 2012.
 
Under the Freedom of Information Act 2000 (General Rights of Access) that
came into force on 1 January 2005, we have a duty to:
 
•       Acknowledge receipt of your request within 2 working days;
•       Respond to your request within 20 working days. 
 
We will respond to your request as soon as possible but no later than 23
November 2012.
 
Yours Sincerely
 
 
Chris Brady
FOI and Data Protection Lead
 
NHS Midlands and East
NHS East Midlands is part of the NHS Midlands and East cluster of SHAs
comprising NHS East Midlands, NHS East of England and NHS West Midlands.
 
E-mail: [1][email address]
 
Please consider the environment before printing this email.
 
DISCLAIMER: This e-mail and any files transmitted with it are confidential
and intended solely for the use of the individual or entity to whom they
are addressed.  Any views or opinions expressed are those of the author
and do not represent the views of NHS East Midlands, East Midlands
Strategic Health Authority unless otherwise explicitly stated.  The
information contained in this e-mail may be subject to public disclosure
under the Freedom of Information Act 2000.  Unless the information is
legally exempt from disclosure, the confidentiality of this e-mail and
your reply cannot be guaranteed
 
 

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FOI (EAST MIDLANDS STRATEGIC HEALTH AUTHORITY),

Dear Mr Roberts
 
Freedom of Information
 
I refer to your email of 26 October 2012 requesting information in respect
of Tender Reference S2HN/5PD/12/0002.
 
I can confirm in accordance with S.1 (1) of the Freedom of Information Act
2000 (FOIA) that we do hold some the information that you have requested.
 
Background
The SHA Cluster advertised on Supply to Health a NHS only competition for
the community services. Prospective candidates received a
Pre-Qualification Document including a Memorandum of Information (PQQ). 
However, during the PQQ process ( of 30 days) we received a challenge to
the NHS open competition from an organisation representing the Independent
Sector.
 
In consultation, we agreed to withdraw our procurement and substitute a
Managed Transfer (MT) to an agreed Acquirer. That process would comply
with the Transferring Community Services (TCS) Directions.  Notices
cancelling the earlier procurement were subsequently published on the
Supply to Health website and to PQQ candidates via the dedicated e portal.
 
In the process of resolving the challenge the PQQ return date expired and
we, via the e portal, received six submissions.  These submissions were
not opened and the documents remain unopened in a dead file on the e
portal.  Subsequently we commenced the TCS managed transfer with local
providers, and seven potential acquirers are in the process of making
submissions due for return on 10 December 2012.
 
Request for Information
 
Tender Documents – including  the PQQ/MOI for the original procurement and
the Prospectus for the Managed Transfer. 
 
Under the FOIA, the commercial interest exemption (s.43) states that:
 
(1) Information is exempt information if it constitutes a trade secret or
 
(2) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).
 
We are of the opinion that the PQQ MoI and MT Prospectus are exempt from
provision as they fall within the exemption available under Section 43 of
the FOIA.  The MT process is still underway and that the content of the MT
Prospectus is being relied upon by potential acquirers as they compile
their commercial proposals.
 
The tender proposals received contain special commercial formulas and
pricing which are also exempt under Section 43(1). The proposals detail
commercial know-how, work methodology and project management structures
and the owners of this information limit dissemination or at least do not
encourage or permit its widespread publication. If this information was
disclosed to competitors, there would be a real and significant harm to
the owner of the trade secret.
 
We also feel that Section 43(2) is engaged because public disclosure of
the requested information would, or would be likely to prejudice the
commercial interests of the organisations in question, in particular their
ability to successfully engage in a competitive commercial market. By
disclosure of the tender proposals to the public, competing firms would be
permitted to gain access to strategic commercial and business information
which has been provided in confidence to the Strategic Health Authority
(SHA). This would give an unfair advantage to competitors in submitting
and negotiating future tenders with the SHA, or other public bodies.
 
With regard to the SHAs own commercial interests, we consider that
disclosure of proposals would, or would be likely to prejudice the SHAs
business reputation and confidence that suppliers, contracting parties and
investors may have in it. This would have a detrimental impact and
threaten the SHAs ability to successfully participate in commercial
activity, in particular the ability to negotiate best value terms of
contract in the best interests of the SHA and the public.
 
Commercial Interests Public Interest Test
 
The information you have requested also requires careful consideration and
application of the public interest test, this is to consider whether the
public interest in disclosing the information outweighs the SHAs interest
in withholding it.
 
We have set out our public interest considerations as follows:
 

* There is a strong likelihood that commercial prejudice to the SHA, PCT
and the other organisations concerned would materialise if the tender
proposals were disclosed to the public.
* The degree of prejudice suffered by those concerned is likely to be
substantial and over a considerable period of time.
* Public disclosure of the information would undermine the ability of
the SHA to perform its statutory functions and, in particular, to
secure best value.

 
On this basis, we believe that the SHAs interest in withholding this
information outweighs the public interest in disclosing it.
 
Section 41 Information Provided In Confidence
 
It is also our view that under FOIA, the information provided in
confidence exemption (Section 41) applies to the tender proposals. Section
41 states that
 
(1) information is exempt information if:
 
(a) it was obtained by the public authority from any other person
(including another public authority), and
 
(b) the disclosure of the information to the public (otherwise than under
this Act) by the public authority holding it would constitute a breach of
confidence actionable by that or any other person.
 
The proposals are currently held on a third party e-portal and whilst the
SHA can access them, they have never been removed from the third party
e-portal.  Any competitive tender process carries with it a responsibility
of confidence to the organisations concerned. The information has been
imparted in circumstances importing an obligation of confidence and
disclosure of this information would be detrimental to those organistions
wishing to keep the information confidential.
 
Disclosure of the information would also constitute a breach of confidence
which could result in substantial harm for the relevant commercial
organisation as well as exposing the SHA to a possible common law action
for the breach. Therefore, information falling under the Section 41
exemption has been withheld. Section 41 is an absolute exemption which
means that there is no public interest test to be applied.
 
We conclude from the above arguments that the public interest in
withholding this information outweighs the public interest in disclosing
it.
 
EOI/PQQ
NHS Midlands and East holds no separate specification information in terms
of this part of your request.
 
The procurement reached MOI/PQQ stage but was subsequently challenged by
members representing the Independent Sector. The challenge was
consequently withdrawn. As a result of that outcome and in agreement with
PNL the Primary Care Trusts (PCTs) with SPTs assistance have commenced a
Managed Transfer process in accordance with the Transforming Community
Services Divestment process.
 
The following note was issued:-
 
“On  27 July 2012 and on 12 September 2012 advertisements were published
on the Supply 2 Health website relating to the procurement of a range of
community services by NHS Milton Keynes and Northamptonshire PCT Cluster
supported by NHS Midlands and East (SHA) . The PCT Cluster and the SHA now
confirm the withdrawal of these advertisements and the discontinuation of
the procurement process. The PCTs and the SHA regret the inconvenience
caused to all those who expressed interest in this process. The intention
was and remains to effect the transfer of the current community services
contract to another local NHS provider under the same arrangements as have
been followed for the rest of the programme for transferring community
services  ("TCS") commenced in 2010.
 
As with other community services contracts transferred under the TCS
programme, the SHA's and PCT's intention is that after the transitional
period  (in this case 3 years), the services will be put out to open
tender following the correct procedures under the Public Contract
Regulations 2006 and the Procurement guide for commissioning of NHS -
funded services of 2010 or any other prevailing policy guidance. In order
to be completed by the expiry of the transitional arrangement the
procurement process would need to start between nine and six months
beforehand. This will then ensure that patients and taxpayers continue to
receive the best quality and value in the longer term."
 

* Guidance/briefings indicating why the decision was made to withdraw
the tender; and
* Copies of documents/other briefings indicating why services will be
published again

 
In respect of the above two requests, the SHA does hold some information
which consists of an exchange of letters between the SHA, PCT and PNL and
its lawyers.   We feel this information is exempt from disclosure via the
exemption available to us under Section 42 of the FOIA.
 
Section 42 sets out an exemption from the right to see information which
is  protected by Legal Professional Privilege (LLP).  The exemption is
qualified meaning that it is subject to a public interest test.  We have
studied the emails and information that we hold in terms of this section
of your request and are confident that they are covered by the exemption
available to us through Section 42.  
 
Section 42 covers communications between Lawyers and their clients, such
as the emails you are requesting, for the purpose of obtaining legal
advice and provides  a confidential environment to ensure openness between
lawyer and client and safeguard access to informed, realistic and frank
legal advice.  
 
There is an important public interest in the proper administration of
justice. In that context, the weight which has been given to the public
interest in the confidentiality of this relationship is  very
considerable. Whilst we appreciate that the general public interest
inherent in this exemption will always be strong, safeguarding openness in
all communications between client and Lawyer to ensure full and frank
legal advice is fundamental to the administration of justice. 
 
We feel that disclosure of this legal advice following your request would
be to the prejudice of the ability of the SHA to seek and be given proper
legal advice which would affect the wider community we serve.  We are also
aware that in other similar cases the Information Commissioner has found
that the confidential nature of such relationships underpins our legal
system and that if that aspect of Legal and Professional Priviledge is to
be broken the reasons for doing so must be compelling. (Bellamy v the
Information Commissioner EA2005/0023 4TH April 2006).
 
It is for these reasons that we consider that the Section 42 exemption is
engaged in this case and that the public interest in withholding the legal
advice outweighs the public interest in disclosure.
 
If you are dissatisfied with the way in which we have dealt with your
request you can ask us to review our decision by writing to:-
 
Mr Moosa Patel
Director of Corporate Affairs
NHS East Midlands
Octavia House
Interchange Business Park
Bostock's Lane
Sandiacre
Nottingham
NG10 5QG
 
If at the conclusion of any review you remain dissatisfied you may
complain to the Information Commissioner who can be contacted at:-
 
The Office of the Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
 
Regards
 
Chris Brady
FOI and Data Protection Lead
 
NHS Midlands and East
NHS East Midlands is part of the NHS Midlands and East cluster of SHAs
comprising NHS East Midlands, NHS East of England and NHS West Midlands.
Email: [1][email address]
 
Please consider the environment before printing this email.
 
DISCLAIMER: This e-mail and any files transmitted with it are confidential
and intended solely for the use of the individual or entity to whom they
are addressed.  Any views or opinions expressed are those of the author
and do not represent the views of NHS East Midlands, East Midlands
Strategic Health Authority unless otherwise explicitly stated.  The
information contained in this e-mail may be subject to public disclosure
under the Freedom of Information Act 2000.  Unless the information is
legally exempt from disclosure, the confidentiality of this e-mail and
your reply cannot be guaranteed
 

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